Elective share
By Richard C. Wilson
Key takeaway
An elective share is a surviving spouse’s statutory right to claim a calculated share after a spouse’s death, with the percentage, property counted, offsets, and election requirements depending on state law.
How the percentage is set: Florida and North Carolina examples
In Florida, a surviving spouse of a person who dies domiciled there has an elective share right under the governing statutory provisions. The amount equals 30% of the elective estate. Making the election does not reduce what the spouse would receive without electing or treat the spouse as having died before the decedent. Other states differ.
In North Carolina, when the decedent dies domiciled there, the elective share claim equals the applicable percentage of Total Net Assets minus Net Property Passing to Surviving Spouse. The percentages are 15% for a marriage under five years, 25% for five to under ten years, 33% for ten to under fifteen years, and 50% for fifteen years or more.
Total Net Assets means total assets reduced by the year’s allowances to people other than the surviving spouse and claims. Net Property Passing to Surviving Spouse reduces property passing to that spouse by attributable death taxes and claims payable from, charged against, or properly allocated to that property. Other states differ.
What the augmented estate counts (Minnesota example)
In Minnesota, for example, the augmented estate combines the decedent’s net probate estate, specified nonprobate transfers to others and to the surviving spouse, and the surviving spouse’s property and specified transfers to others. Property wherever situated enters only within the statutory categories, subject to exclusions and valuation rules. The probate component is reduced by funeral and administration expenses, the homestead, family allowances and exemptions, liens, mortgages, and enforceable claims. Other states differ.
In Minnesota, for example, the survivorship category for nonprobate transfers to others counts the value of the decedent’s interest passing at death to someone other than the surviving spouse. The category excludes the homestead. Property is excluded to the extent the decedent received adequate and full consideration in money or money’s worth. Property transferred with the surviving spouse’s written joinder or written consent is also excluded. Other states differ.
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Points that are easy to confuse
Does property already passing to the spouse reduce what others owe?
Yes. In Minnesota, for example, specified property and benefits attributable to the surviving spouse first satisfy the elective share amount and can reduce or eliminate contributions from the probate estate and recipients of nonprobate transfers to others.
Credits include included probate property passing to the spouse by will or intestacy, included nonprobate transfers to the spouse, included property the spouse disclaimed, and the applicable percentage of the spouse’s included property and nonprobate transfers. That applicable percentage is twice the elective share percentage appropriate to the length of time the spouse and the decedent were married to each other. Other states differ.
Does a supplemental amount always add $75,000?
No. In Minnesota, for example, a supplemental elective share amount fills a defined shortfall only when the statutory sum is below $75,000.
The sum combines the amounts described in §524.2-207, the amounts described in §524.2-209(a)(1), and the part of the elective share amount payable from the decedent’s probate estate and nonprobate transfers to others under §524.2-209(b) and (c).
The supplement equals $75,000 minus that sum. Payment comes from the decedent’s probate estate and recipients of nonprobate transfers to others in the order of priority under §524.2-209(b) and (c). Other states differ.
Are specified homestead rights and allowances additional to the elective share?
Yes. In Minnesota, for example, when the election is exercised by or on behalf of the surviving spouse, any homestead rights and other allowances under §§524.2-402, 524.2-403 and 524.2-404 are additional to both the elective share and supplemental amounts. Those benefits, if available under the governing statutes, are not charged against either amount. Other states differ.
Does owning Minnesota property automatically make Minnesota’s percentage apply?
No. In Minnesota, for example, when a decedent dies domiciled elsewhere, the law of that domicile at death governs any surviving spouse’s elective share right in Minnesota property. Property location alone does not make Minnesota’s percentage schedule apply. Other states differ.
Election deadlines, representation and waivers
Must a surviving spouse file a petition by a deadline?
Yes. In Minnesota, for example, the ordinary election requires filing a court petition and mailing or delivering it to the personal representative, if any. Both steps must occur within nine months after death or six months after probate of the will, whichever period expires later.
The spouse must notify interested persons and adversely affected distributees and recipients of the hearing’s time and place. Unless a qualifying extension applies, filing more than nine months after death excludes the decedent’s nonprobate transfers to others from the calculation.
Special rules apply when the surviving spouse receives medical assistance under Minnesota’s chapter 256B when the other spouse dies. See the medical assistance rules below. Other states differ.
Can an extension preserve nonprobate transfers in the calculation?
Yes. In Minnesota, for example, a court may grant an extension for cause shown if the surviving spouse petitions within nine months after death and notifies everyone interested in the decedent’s nonprobate transfers to others within that period.
To preserve those transfers in both the elective share and supplemental calculations, the spouse must file the election petition in court within the granted extension. The spouse must also mail or deliver it to the personal representative, if any, within that extension. Other states differ.
Is the ordinary election limited to the surviving spouse’s lifetime?
Yes. In Minnesota, for example, the ordinary right of election may be exercised only during the surviving spouse’s lifetime.
For a protected person, the court handling protective proceedings concerning that person’s property must order the election. The court must find that election is necessary for adequate support over the person’s probable life expectancy and consistent with the best interests of the natural objects of that person’s affection.
The medical assistance rules below provide an exception, including authority for the surviving spouse’s personal representative. Other states differ.
Can medical assistance change the election and waiver rules?
Yes. In Minnesota, for example, special rules apply if the surviving spouse receives medical assistance under chapter 256B when the other spouse dies.
The surviving spouse may elect or petition for an extension before an order or decree is entered under §524.3-1001 or §524.3-1002, or a closing statement is filed under §524.3-1003. The decedent’s nonprobate transfers to others are included in calculating both the elective share and supplemental amounts under this provision.
If election would provide a greater estate share than the will or intestate succession, the surviving spouse’s guardian or conservator must elect without a court order. The surviving spouse’s personal representative may exercise the election and statutory homestead right, or petition for an extension, using the procedures provided by the statute.
An oral or written contract, agreement, or waiver does not prevent the surviving spouse or guardian or conservator from exercising election, homestead, exempt property, and family allowance rights to the extent permitted by law. A valid antenuptial agreement remains effective to the extent it waived those rights. Other states differ.
Can a spouse waive the elective share after marriage?
Yes. In Minnesota, for example, a spouse may waive the elective share wholly or partly after marriage through a written contract, agreement, or waiver signed by the waiving party after fair disclosure.
Unless the document provides otherwise, a waiver of “all rights,” or equivalent language, in a spouse’s property or estate waives only the elective share. A premarital waiver must comply with §519.11.
See the medical assistance exception above for the limits on waivers under that provision. Other states differ.
Common questions
Does every state use the same elective share percentage?
No. In Kansas, for a decedent who dies a resident there, the augmented estate percentage increases with marriage length under the statute’s limitations and conditions. The schedule provides only a supplemental amount for marriage under one year, 3% for one to under two years, and 50% for fifteen years or more. All periods of marriage between the same spouses are added together, excluding time between marriages.
In South Carolina, when a married person dies domiciled there, the elective share is one third of the probate estate under the statutory computation, satisfaction, and other conditions. Probate estate means property passing by will and intestacy, reduced by funeral and administration expenses and enforceable claims. The statute limits the share to probate property except for a revocable inter vivos trust found illusory under the governing provision. The fraction does not follow a marriage length schedule. Other states differ.
Can an elective share include assets outside probate?
Yes. In North Carolina, Total Assets can include property in a trust the decedent could revoke, trust property the decedent could withdraw without restriction, and accounts or securities owned by the decedent payable or transferable to a designated beneficiary at death.
These are statutory examples within the category for property over which the decedent held a presently exercisable general power of appointment immediately before death. Joint survivorship property and life insurance use separate statutory inclusion provisions. Property falling within overlapping categories is counted once, under the category producing the greatest value. Other states differ.
Can Florida’s elective estate include homestead and jointly owned property?
Yes. In Florida, the elective estate can include the decedent’s probate estate, protected homestead interest, designated beneficiary accounts, and specified survivorship or entireties property, subject to the statutory valuation rules and exclusions.
For accounts or securities held by the entirety, the decedent’s ownership interest is half the value. For other covered accounts or securities, it is the portion the decedent could withdraw or use immediately before death without accounting to anyone.
For covered survivorship or entireties property other than the account and securities property described above, the decedent’s fractional interest equals the property’s value divided by the number of tenants.
Exclusions include transfers irrevocable before the provision’s effective date, subject to the statutory exception, or after that date but before marriage to the surviving spouse. Transfers are also excluded to the extent the decedent received adequate consideration in money or money’s worth.
Transfers made with the spouse’s written consent are excluded. Consent to split gift treatment for federal gift tax purposes does not count as written consent to the transfer.
Other exclusions include life insurance proceeds above net cash surrender value, life insurance maintained under a court order, and the decedent’s half of property covered by the specified community property provisions or similar laws elsewhere. Real property that is community property under the law where it is located is also excluded.
Property in a qualifying special needs trust at death is excluded, as is property included in the federal gross estate solely because the decedent held a general power of appointment. Protected homestead is excluded if the spouse validly waived homestead rights and received no interest in it at death.
If probate property also falls within another inclusion category, the amount included under that other category is reduced by the probate inclusion. For other overlaps, only the category producing the largest elective estate applies. Other states differ.